Johnny Howze v. T. Tanaka ( 2014 )

FILED
NOT FOR PUBLICATION OCT 8 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY LEE HOWZE, No. 13-56382
Plaintiff - Appellant, D.C. No. 2:13-cv-04422-UA-RZ
v.
MEMORANDUM*
T. TANAKA, Ph.D., individual capacity;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
California state prisoner Johnny Lee Howze appeals pro se from the district
court’s order denying his application to proceed in forma pauperis and dismissing
his 42 U.S.C. § 1983 action alleging claims related to his insomnia and erectile
dysfunction. We have jurisdiction under 28 U.S.C. § 1291. We review for an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse of discretion the denial of leave to proceed in forma pauperis, and de novo a
determination that a complaint lacks arguable substance in law or fact. Tripati v.
First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We affirm.
The district court did not abuse its discretion by denying Howze leave to
proceed in forma pauperis because Howze’s claims were either frivolous or lacked
merit. See id. at 1370 (“A district court may deny leave to proceed in forma
pauperis at the outset if it appears from the face of the proposed complaint that the
action is frivolous or without merit.”); Sparling v. Hoffman Constr. Co., 864 F.2d
635, 638 (9th Cir. 1988) (court may sua sponte dismiss for failure to state a claim
without notice or an opportunity to respond where plaintiff cannot possibly win
relief); see also Farmer v. Brennan, 511 U.S. 825, 845, 847 (1994) (elements of
deliberate indifference); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021-22
(9th Cir. 2010) (“The [Americans with Disabilities Act] prohibits discrimination
because of disability, not inadequate treatment for disability”).
We reject Howze’s contentions that the dismissal of his action was
premature or that the district court failed to address any timely-filed objections.
AFFIRMED.
2 13-56382